The City of FORT MORGAN v. EASTERN Colo. Publ'g Co., 09CA0133.
| Decision Date | 18 March 2010 |
| Docket Number | No. 09CA0133.,09CA0133. |
| Citation | 240 P.3d 481 |
| Parties | The CITY OF FORT MORGAN, Colorado, a municipal corporation; and Andrea Strand, Custodian of Records, Plaintiffs-Appellees and Cross-Appellants, v. EASTERN COLORADO PUBLISHING COMPANY, d/b/a The Fort Morgan Times; and William Holland, Defendants-Appellants and Cross-Appellees. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Light, Harrington, & Dawes, P.C., Steven J. Dawes, Denver, Colorado; Jeffrey A. Wells, City Attorney, Jerrae C. Swanson, Assistant City Attorney, Fort Morgan, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
Levine, Sullivan, Koch, & Schulz, L.L.C., Thomas B. Kelley, Christopher P. Beall, Adam M. Platt, Denver, Colorado, for Defendants-Appellants and Cross-Appellees.
Opinion by Judge J. JONES.
Eastern Colorado Publishing Company (now known as Prairie Mountain Publishing Company, L.L.P.), doing business as The Fort Morgan Times newspaper, and the newspaper's publisher, William Holland (collectively, The Times ), appeal the district court's judgment finding that the City Council of the City of Fort Morgan was not required to provide The Times with certain documents created in connection with the City Council's performance evaluation of the City Administrator, Michael Nagy, under the Colorado Open Records Act, sections 24-72-201 to -206, C.R.S. 2009 (CORA). Because we conclude that the documents at issue are not subject to CORA's disclosure requirements under the statutory work product exception, section 24-72-202(6)(b)(II), (6.5), C.R.S. 2009, we affirm.
The facts relevant to the legal issues on appeal are essentially undisputed. We take them from the district court's thorough and well-reasoned “Findings of Fact, Conclusions of Law, and Judgment,” and, where necessary to provide largely procedural detail, from the record.
On August 21, 2007, the City Council conducted an interim performance evaluation of Mr. Nagy, which was held in open session at his request as permitted by section 24-6-402(4)(f)(I), C.R.S. 2009. 1 During that session, Mr. Nagy requested that all further evaluations of his performance be in open session, but specifically requested that the individual evaluation forms prepared by City Council members before that session be destroyed. The City destroyed those forms. The Times did not request copies.
On November 6, 2007, the City Council approved a written policy for handling performance evaluations of appointed city officials. That written policy tracks the informal, unwritten policy the City Council had employed at the time of Mr. Nagy's interim performance evaluation. As relevant here, the written policy provides:
• At least two weeks before any personnel review, each City Council member completes a review form and gives it to the City Attorney, who then compiles the members' ratings and comments.
• The City Council members' review forms “shall not be disclosed.”
• The City Council members discuss the employee's performance in executive session unless the employee requests that the discussion be held in open session.
• At the session, the Mayor reads the composite evaluation prepared by the City Attorney, which contains ratings (termed “appraisals”) and comments obtained from the individual members' review forms.
• Before or during the session, City Council members may provide written statements not already included in their individual review forms.
• The comments contained in the composite evaluation and any additional written comments provided before or at the session shall not identify the City Council members who prepared them.
• The City Council members discuss the employee's performance and goals for the next evaluation.
• The City Council determines an employee's goals and corrective measures or expectations by “informal consensus.”
• A final written evaluation is prepared, which the City Council members vote on in open session.
In accordance with this written policy, the City Council set December 18, 2007 as the date for Mr. Nagy's performance evaluation. 2 Each City Council member completed a review form containing numerical ratings (on scale of 1 (“[r]arely demonstrates this performance expectation”) to 5 (“[d]emonstratesexcellent performance”)) in forty-five “[s]coring [e]lements” divided among nine more general “Targeted Areas of Accountability” and a section covering Mr. Nagy's “Essential Functions.” 3 Some City Council members submitted their completed review forms anonymously. Some did not give ratings in all of the scoring elements. When the City Council members completed these forms, they believed, based on Mr. Nagy's request at his interim evaluation session, that the performance evaluation would be conducted in open session.
The City Attorney collected the individual City Council members' review forms and prepared a spreadsheet showing the individual ratings, an average rating for each “scoring element,” and an overall average rating (2.8). The compilation also included the written comments of individual members. It did not, however, indicate which City Council member gave any individual numeric rating or written comment.
Immediately before the performance evaluation session on December 18, the City Attorney gave each City Council member a composite document showing the average ratings in each scoring element and the unattributed comments, but not the numeric ratings of individual members in each scoring element. None of the City Council members ever saw those individual numeric ratings, nor apparently did City Council members otherwise disclose to each other their individual numeric ratings in particular scoring elements.
The City Council conducted Mr. Nagy's evaluation in executive session, with Mr. Nagy present. (Mr. Nagy informed the City Council on December 7 that he had changed his mind and no longer wanted the City Council to conduct his evaluation in open session.) The City Council members discussed the overall rating of 2.8 but did not discuss their individual ratings. Though the testimony at trial established that the City Council members were free to change any of their individual ratings or comments based on the discussion, none of them did so. The City Council members did, however, tentatively agree on a final evaluation which consisted of an overall rating of 3.0 (rounded up from 2.8), deferral of the decision on increasing Mr. Nagy's compensation to the next evaluation, and their comments (including those added during executive session).
After the City Council returned to open session, its members voted unanimously to approve Mr. Nagy's final evaluation.
The next day, the City Attorney prepared a final evaluation form in accordance with the composite documents he had provided to the City Council members before the executive session and the City Council's approved changes thereto. The final evaluation form was provided to Mr. Nagy that day. He signed it in the space provided for indicating that he agreed with it.
Two days after the executive and open sessions pertaining to Mr. Nagy's performance evaluation, the City Attorney, acting in accordance with past practice and Mr. Nagy's expectations, destroyed the City Council members' individual review forms. He retained the spreadsheet. The City Attorney then knew that The Times had expressed interest in obtaining documents relating to Mr. Nagy's performance evaluations.
On December 28, 2007, Mr. Holland, acting as publisher of The Times, submitted a CORA request to the City Clerk for “[a] copy of each Individual Review Form completed by each of the seven City Council members, and a copy of Michael Nagy's personal Review Form, which were used to arrive at the City Council's recent 2.8 (rounded up to 3) rating of Michael's performance.” Before responding to this request, the City filed this action, requesting a declaratory judgment that CORA did not require it to provide the requested documents (which it noted had been destroyed) to The Times because (1) the documents were “work product” within the meaning of the statutory exception for such materials from the definition of “publicrecords” and (2) the documents were covered by the statutorily recognized “deliberative process privilege.” 4 The City sent a letter to The Times a few days later denying the CORA request based on these same claimed exceptions.
The Times filed an answer and counterclaims in the City's declaratory judgment action. Though The Times' answer is not in the record, it apparently sought a declaration that the City had improperly denied its CORA request and a mandatory injunction requiring the City to provide a sworn statement of each City Council member's performance ratings of Mr. Nagy. After replying to The Times' counterclaims, the City moved to voluntarily dismiss its declaratory judgment complaint. The court granted that motion.
The Times' counterclaims were tried to the court. During the trial, The Times requested production of the spreadsheet the City Attorney had prepared in advance of the December 18, 2007 performance evaluation. After determining that The Times' initial CORA request was broad enough to include the spreadsheet, the court ruled on The Times' counterclaims, as relevant here, as follows:
• The court found that although the individual City Council members' review forms and the spreadsheet are “public records” within the meaning of CORA, they are excepted from the disclosure requirement under the statutory work product privilege.
• The court found that the subject documents are not subject to the deliberative process privilege because they are “not so candid or personal that their public disclosure would be likely to stifle honest and frank discussion within the government.”
• The court rejected The Times' contention that the City had waived its CORA defenses.
The court entered judgment in the City's favor on The Times' counterclaims.
On appeal, The Times challenges the district court's ruling that the...
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